On Monday I read a story that utterly depressed me. The BBC reported the case of Rachel Burns who was dismissed by Surrey County Council from her job in a care home for posting pictures on Facebook that included a vulnerable resident. This is not one of those posts where I pull apart the media reporting. It seems to me that the BBC account is pretty accurate – and is confirmed by the Tribunal decision.
When you read what Ms Burns did wrong I very much doubt that your reaction will be ‘well thank goodness that person can no longer work with vulnerable adults’. She shared a photo on Facebook of a happy occasion – a musical evening that she led at the care home where she worked. No-one was harmed. No resident objected. In fact, by the time of the Tribunal hearing the resident in question had made it clear that he was quite happy for the picture to appear.
But Ms Burns had clearly acted in breach of the social media policy which did not allow the posting of text, video or photos that breached the confidentiality of residents. She accepted that fact and took the post down immediately. She was then suspended (why?) and taken through the disciplinary process. The employer concluded that such a breach of the policy would normally lead to dismissal but that they would on this occasion offer her redeployment to a much more junior post – at a much lower rate of pay. She took too long to make up her mind about that, however, and so she was dismissed with notice.
She had worked at this care home for more than 20 years and her career was over because she inadvisedly published pictures on Facebook of an event that showed residents of the care home enjoying a social event. Nobody thinks that she poses a danger to anyone. There is no reason to think that she will ever do this again. Nobody has actually suffered any harm or even anxiety except the employee herself. Why then must she lose her job? How can such a devastating – life ruining – penalty be appropriate or reasonable?
Now there are two sides to every story and the Council would no doubt argue about the fundamental importance of safeguarding vulnerable adults from breaches of their privacy or dignity. But what I find most enraging about this case is that in the whole of the ET judgment – it’s 18 pages long – you won’t find any discussion of that issue. The nearest you get is one line in paragraph 93 where the Tribunal says that proposing to demote her ‘was within the band of reasonable responses to the admitted misconduct’. There is no explanation of the basis of that finding and no discussion or consideration of whether the breach of policy was really so serious as to warrant dismissal.
Instead we get procedure; pages and pages of procedure. The Tribunal discusses the various hearings and adjournments and the conduct of the appeal hearing. It then concludes that on one very narrow issue the dismissal was unfair: the employer should have given her longer to think about accepting a more junior position.
The next step will be to decide remedy – and here Ms Burns is likely to be seriously disappointed. Instead of being compensated for everything she has lost in the past year and will continue to lose in the future, she is likely to be awarded only a token amount. There will be a deduction made for contributory fault – and since the Tribunal seems to think that demotion or dismissal was within the range of reasonable responses that is likely to be significant. Compensation will also reflect the Tribunal’s finding that there was ‘only a slim chance’ that she would’ve accepted the lower paid position.
Frankly, If I were the employer in this case I’d chalk it up as a technical defeat, but a practical win. I might also regret the fact that a single and inadvertent breach of policy led to the loss of an experienced and valued employee. As it happens, however, the care home was already scheduled for closure by the time Ms Burns was dismissed and so her dismissal actually allowed the employer to save on its redundancy costs (although I should carefully record that the Tribunal rejected any suggestion that this fact lay behind the employer’s decision to take such a strict view of the employee’s misconduct).
Now of course Ms Burns could appeal against a major reduction in compensation – and I would think that her chances would be good. The range of reasonable responses test certainly skews unfair dismissal law in favour of employers – but it does not mean that Tribunals can ignore questions of substantive fairness altogether. Employers cannot simply rely on the fact that there has been a technical breach of a policy to justify dismissal. For a recent example see Arnold Clark Automobiles Ltd v Spoor in which the EAT upheld a finding of unfair dismissal even though the employee was guilty of gross misconduct. That fact did not mean that the employer was entitled to disregard the employee’s long service and the surrounding circumstances of the case.
But what would winning the appeal actually achieve? The most likely outcome would be that the case would be sent back for re-hearing. Ms Burns would have to go through the whole process again – and still would not be guaranteed a substantive win. By then it would be over two years since her dismissal. Frankly I’d probably advise her not to bother – it just isn’t worth the extra grief.
Even accepting that this decision is flawed, it strikes me as a good example of what is wrong with unfair dismissal law. The law has become fixated with policies and procedures to the point where it is essentially a bureaucratic right – looking at how the employer has gone about the process rather than asking fundamentally whether it was right for the employee to be dismissed. This is bad for employers and employees. It is bad for employers because it can tie them up in red tape even where the case for dismissing an employee is compelling – and it is bad for employees because an employer who drafts clear policies and is good at following procedures has a pretty free hand in deciding whether or not to dismiss someone. Even winning the case is often a hollow victory because the remedies are so limited.
I’m increasingly of the view that the right not to be unfairly dismissed is not really worth the volumes of case law and legal commentary devoted to it. If I had my way I’d scrap the whole thing and start again.
Darren, I completely share you feelings with regard to this case which makes for rather depressing reading. Speaking as someone who represents employers, when I got to the bit in the article that stated that she was offered a demotion I immediately thought that that would be the issue that made the dismissal unfair rather than the narrow technical point that the council only gave her a couple of days to decide. This was clearly a totally unreasonable response, given the nature of the misconduct and her lengthy unblemished service. I accept that she had acted inappropriately and that a formal disciplinary sanction was appropriate in order to enforce the social media policy, but surely a written warning would have sufficed. However, it is important, in my view, not to depart from the principle that it is not the job of the ET to act as a proxy employer so as to reexamine the issue of whether the dismissal was unfair by considering the matter anew. The range of reasonable responses test may require tweaking but it should bot be done away with all together, imho. This is a case which, even applying the current tests, the Tribunal simply got wrong in my opinion.
Darren, 20+ years in the trenches and it increasingly feels like that. Procedures are taking precedence over substantive fairness. The range of reasonable responses test is losing relevance
I have a lot of sympathy for the claimant in this case, although, as I work with a number of charities in this field of work, I also think that “the fundamental importance of safeguarding vulnerable adults from breaches of their privacy or dignity” is something that is ingrained into staff working in this sector and which employers rightly take very seriously.
However, I think we are in danger of extrapolating systemic failures on the back of one case. This was clearly a heavy handed and bureaucratic employer over-reacting to the situation (had it been one of my clients I would have advised a warning/final warning) compounded with a tribunal judge deciding it was within the range of reasonable responses even though many reading the judgment would not reach the same conclusion. It’s a sad one-off, not a breakdown of the tribunal system, in my view.
Have a gin and tonic and cheer up!
I am with Simon Jones that one bad case does not mean the system is a waste of time tho’ I agree this was a bad case. Anyway Darren not good enough just to say start again…with what?
Darren – here here.. What happened to Rachel was disgusting. Basically win win for the local authority who obviously used it as an excuse to dismiss Rachel completely dispropotionately and avoided redundency as they must have known that the home was going to be closed down.. They then had their army of barristers and legal team at the tribunal whereas Rachel just had the Reverend speaking up for what was right and just. Thankfully they won but I believe she has been awarded a derisory compensation and she is probably too ill to work again after what she has been through. Yes depressing! Did it make me angry – yes again. Rachel was a victim and so were those poor residents who loved the music nights and loved living at the residential home.
Darren, I couldn’t agree more with your comments there. Sometimes it’s hard to understand the rationale behind the ET decisions. How do they measure or define ‘reqsonable’. I think sometimes we should consider issues in a context and take a balanced approach. I see more and more that what they define as ‘reasonable’ is in fact quite unreasonable.
Just a reflection.